Illegal Aliens? Guess What – A Solution Is Already On The Books.
note: With this
article, we welcome a new member of our Editorial Collective,
Juan is proprietor of
DeportAliens.com — the
only immigration reform web site exposing the federal
immigration bureaucracy and the Executive Office for
Immigration Review–EOIR. He tells us that he dedicates his
work to the principle that one man`s opinion can make a
In the terror of the
beltway sniper episode lies another example
of how immigration policy actions by executive
branch bureaucrats have very real consequences
for real Americans.
Michelle Malkin, author of the stunningly topical
Invasion, and reporters at the the
Washington Times and elsewhere are rightly
scrutinizing the Immigration and Naturalization Service,
trying to find out who is responsible for releasing the
illegal alien junior sniper, John Lee Malvo, in defiance
of federal law governing apprehended alien stowaways.
But, in a broader sense, the federal government`s
decision to release the Jamaican illegal alien from INS
custody on his own recognizance – without so much as a
penny of immigration bond – was made years ago.
Malvo`s release can be traced to a little-known but
deliberate choice made by Clinton Administration
Attorney General Janet Reno. She used the discretion
Congress granted her in implementing the newly-minted
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996
to opt for non-enforcement of some of
best immigration law enforcement provisions ever
written – found in section
235(b) of the Immigration Act. As a result, key
parts of these provisions remain dormant to this day.
Reno, along with then INS Commissioner
Doris Meissner, chose not to enforce the streamlined
removal provisions of section 235(b) to the fullest
extent. They chose not to apply these provisions to a
broader category of illegal aliens – which would have
included sniper Malvo and his mother, regardless of
whether they were stowaways or not.
Unfortunately, this Clinton Administration policy has
been continued by the Bush Administration – with obvious
Section 235(b) of the Immigration Act allows the
federal government to remove certain classes of aliens
without giving them lengthy hearings before the
alien-friendly Executive Office for Immigration Review bureaucracy of the Justice Department.
note: Click here to get
Juan`s opinion of
that!] Under section 235(b), aliens who present
themselves for inspection at any point of entry can be
detained and sent back where they came from if the
inspecting officer believes that they have no proper
documents – or if they have attempted to enter by
fraud (by presenting
false documents or lying to the officer).
Section 235(b) does include an
abuse-prone process for determining whether aliens
demonstrate a “credible fear” of return to their home
countries (the first step toward applying for asylum).
But it is still probably the most efficient law
enforcement mechanism written by Congress for removing
aliens quickly – a.k.a. throwing them out.
But there`s a complication: Section 235(b)(1)(A)(iii)
of the Act. This is the key to why sniper Malvo, and
thousands of other illegal aliens like him, are not now
covered by the expedited removal process.
This section gave the Attorney General the choice of
whether or not to apply section 235(b) to all aliens
discovered in the United States “who have not been
admitted or paroled” (i.e. those here illegally) and who
couldn`t prove they had been in the U.S. for two years
The Attorney General has the option under the statute
to designate these particular illegal aliens as being
covered by section 235(b) – i.e. instantly removable
without a hearing. But both Clinton`s
Reno and Bush`s
Ashcroft chose not to.
They let these illegals escape into the EOIR
Immigration Court quagmire instead.
In short, under both Reno and Ashcroft, the INS has
not been applying the streamlined immigration law
enforcement tool of section 235(b) to the fullest extent
possible. Section 235(b) has simply never been applied
to recently-arrived aliens caught in the
middle of the desert in southern Arizona, aliens
caught in the act of climbing a
border fence, swimming the
Rio Grande river, or
wading onto shore in southern Florida.
If these illegal aliens happen to be Mexican
nationals crossing from Mexico, most are given a
“voluntary return” home by the Border Patrol. But,
Mexican or not, if the illegal aliens want to contest
their removal, they can now avoid section 235(b) removal
and proceed instead to formal hearings before an
immigration judge – with possibility that they will be
released from INS custody and continue their journey
into the United States.
Additionally, since the 1996 Act became law, the INS
has never applied section 235(b) to smuggled aliens who
enter illegally and successfully make it to their
destinations inside the U.S. – whether in Chicago, Los
Angeles, Detroit, Atlanta or even Bellingham,
Washington, where Malvo was apprehended.
This class of recently smuggled aliens, if they are
apprehended within two years of their arrival, could all
be rounded up and given expedited removal a.k.a. thrown
out, by immigration officers under Section 235(b). But
as the Clinton-Bush policy stands now, these aliens,
including sniper Malvo, get the whole
EOIR Immigration Court hearings and the chance to be
released from custody during the process.
From the little information the immigration
bureaucracy has released so far, all signs suggest that
Malvo and his mother were both active EOIR Immigration
Court cases at the time of the Beltway shootings, even
though they were both apprehended by the Border Patrol
in December, 2001.
But if the Attorney General had made it government
policy to apply section 235(b) to cover all permissible
classes of illegal aliens, Malvo would not have been
released to the streets. Period. End of story.
Sniper Malvo would not have had Immigration Court
hearings in the state of Washington. He would have been
given expedited removal by immigration officers as an
alien without documents under Section 212(a)(6) of the
He would not have shot American citizens.
So why hasn`t the Attorney General applied section
235(b)(1)(A)(iii) of the Act to as many illegal aliens
as possible, and put section 235(b) to work doing what
Congress intended it to do? Lack of political will? Lack of personnel?
Whatever the reason for not acting in the past,
however, it`s now time for the Bush Administration and
Attorney General Ashcroft to do the right thing.
They should use all the laws on the books to their
Unleashing section 235(b) would be a great first step
for the federal government do its duty and deport
Ironic silver lining: Releasing this particular
stowaway and getting him into Immigration Court may have
exposed the Justice Department to massive liability.
Plaintiffs` lawyers might figure out that the INS
violated section 235(a)(2) of the Act – and, under
Section 235(b)(1)(A)(iii) of the Act, perpetrated a
dangerous policy of institutionalized non-enforcement
November 05, 2002